The People v. Free Speech (Hysteria)

“We have entered a new, much less metaphorical phase of the campus-speech wars. We’re beyond hissing, or disinviting. We’re no longer talking about the heckler’s veto, but the masked-thugs-who-will-burn-trash-cans-and-assault-you-and-your-entourage veto.”

No, Rich Lowry, Ann Coulter is not a liberal, “free speech” is not under attack, and Berkeley doesn’t represent an authoritarian assault on our values that renders Coulter a “liberal.” Much like The Atlantic’s PeterBeinart’s “call” for “fellow liberals” to defend “free speech” and John Woodrow Cox’s melodramatic Washington Post op-ed on Berkeley, contemporary center-left outlets have embraced the trend to defend free speech against imagined assaults from over-protected students. Even the New York Times perpetuates this accepted narrative, feigning balance with the publication of Nicholas Dirks’ “Berkeley Is Under Attack from Both Sides.” Publications suggesting some alternative, more nuanced recount of Free Speech incidents – Ulrich Baer’s op-ed for The Stone, and even The Economist’s questioning the outrage generated by content warnings – fall into a small, negligible minority.

Quite a lot has been written on the absurdity of these claims outside of mainstream publications. They’re rightly acknowledged as both a derisive ad hominem against younger generations of college students and as smug moderate nostalgia seeking to maintain the imagined “common sense” standpoint in a supposedly left-moving political culture. What I haven’t seen, though, is a critical interrogation into the heart of what is being derided as an assault on speech. Bad, offensive speech is protected within our form of political liberalism and most politically engaged college students accept these First Amendment protections. Might arguments over free speech be masking a more fundamental problem, one ultimately deeper than disagreement over the culture of the First Amendment?

Various kinds of language and symbolic action are protected broadly by the First Amendment. With respect to offensive speech and violent speech, the Court has a history of distinguishing between abstract, violence-in-principle and imminent, organizing for violent action. In Yates v. United States (1957), the Supreme Court protected Communist Party organizers against the Smith Act on the grounds that promotion of an “abstract doctrine” that encourages revolutionary change is not the same as the promotion of direct “violent” and “forc[ful]” action. Citing a history of distinguishing between abstraction doctrines and direct action, radical activity was protected by the majority opinion. However, this case largely dealt with the legal meaning of “organize” according to the Smith Statute and did not necessarily protect all radical advocacy. Broad protections were established through Brandenburg v. Ohio (1969), in which Ohio convicted a KKK member for advocating forceful and violent action and the Court rejected Ohio’s decision. Since the KKK member was merely “advocating” through assembly and not engaged in violent and forceful acts against others, the Supreme Court ruled that their speech was/is protected because “the mere abstract teaching…is not the same as preparing a group for violent action.” A decade later, the Court protected offensive symbols that might incite violent reaction in National Socialist Party v. Skokie (1977). The Illinois Supreme Court prohibited Nazis from marching in Skokie (Chicago suburb with a large Jewish population) on the grounds that they had no claim to free speech; the Supreme Court rejected the state court’s opinion (disagreed with a “reversal of stay”) because the Nazi rally was protected by free speech. More recently, the Court also sided with offensive language in Snyder v. Phelps (2011). Westboro Baptist Church protested a soldier’s funeral, turning a private event into a public rally against homosexuality in the military. Since these issues were “matters of public concern” and since the protesters did not violate the privacy of funeral attendees or the funeral grounds the majority sided with Westboro and protected their protest as free speech. Justice Alito dissented, however, arguing that “Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.” But even his dissent did not accept that Westboro’s actions caused emotional distress on the attendees of the funeral.

All of the above cases illustrate that our contemporary political climate accepts offensive speech as free speech. This acceptance means that, barring any radical reversal on the Supreme Court, Ann Coulter and Milo Yiannopoulos types will continue to have the political freedom to speak their mind. What isn’t protected is their right to be heard. Similar to the Nazi rally in Skokie, the consequences of speech are the responsibility of the listeners and our political tradition empowers dissent through the (non)act of not listening. More importantly, the fundamental basis of free speech culture assumes that our public culture is a marketplace of ideals; hence, repugnant ideals have just as much right as any other to be heard, ignored, and determined unworthy for further consumption. The fact that college students have successfully canceled far-right speaking tours is therefore evidence of our free speech culture in action.

These facts aside, I think many on the left would agree that far right speech is a kind of “bad speech” albeit bad speech protected by the first amendment. But as Court opinions repeatedly demonstrate, the emotional and affective consequences of speech are the responsibility of those with whom the consequences originate. If a Jew punches a Nazi in Skokie, the Jew would bear responsibility for the act; not the Nazi whose speech may have instigated the punch. This analysis is fundamental to our type of liberal democracy: we are all individuals responsible only for our own actions and speech, over which we are entirely sovereign. In all our hysteria over free speech limitations, we have not stopped to consider whether or not this ideological foundation – that of the liberal individual, their relation to speech, and their relation to each other – might be more at the heart of campus conflicts than a conflated notion of censorship.

Campus activism since the sixties (and there is a continuation even if older generations would prefer to think otherwise) has challenged the ideological premises of political liberalism by insisting that our material inter-dependence and the history of our social locations are as much a part of the singular “person” as the disembodied will-to-choose that political liberalism isolates. Feminism, Anti-racism, and activism for Indigenous, Immigrant, Disabled, LGBTQ, and materially disenfranchised persons rejects that each “individual” is born tabula rasa and free to dictate their own sovereign path in society. While such a dream might be the ideal of certain leftist movements there is shared agreement that such an ideal does not exist in practice even if our laws might in principle allow for such a practice. What our society has restricted to the private realm of culture allows for too much legal, economic, and social discrimination to persist regardless of recent society’s minimal political intervention. The fundamental difference in conceptions of personhood – the radical subjectivity of interdependence, versus the politically liberal subject of isolated sovereignty – bear immediate relevance on discussions of speech insofar as the radical ideal stands in total opposition to the majority opinions that have determined the practice of the First Amendment. If we accept the Supreme Court’s interpretations, then Jews and Nazis in Skokie would be equally empowered to engage in a speech situation. Because they are all individuals sovereign over themselves Jewish residents are free to merely ignore the march or otherwise restrain their emotions. Hence they bear responsibility for acting out against Nazi speech. Alternatively, the left rejects these premises. We are not sovereign over ourselves. Anti-Semitism is not only the largest category of hate crimes committed in the late Twentieth and early Twenty-First centuries, but the Jewish history of only recently assimilating to Whiteness situates Jews differently with respect to White Nazis. Jews and U.S. Nazis cannot operate on equal grounding precisely because the history of racial relations disempowers Jews while empowering Nazis. Moreover, because our affective, embodied person is not totally removed from the world and thus dependent on our environment as much as our willpower, we cannot claim to be totally sovereign over our emotive responses to speech situations. The Supreme Court specifically and Western Liberalism generally sees speech situations as always existing between equal liberal persons; the left sees speech situations as existing within socially and politically charged circumstances and therefore between unequal persons.

As an aside, I think my own commentary warrants some brief attempt to define “responsibility” since I don’t restrict its conception to singular individuals. In the same way that I accept that our singularity is an embodied, inter-subjective person, I subscribe to a concept of responsibility where singular incidents are symptomatic of social problems and should be dealt with as a society. Social responsibility is not the same politically liberal notion that imagines criminals to always be exceptions to a shared liberal humanity and who are in need of immediate punishment. Responsibility does not imply or need individuality.

Returning to speech, what contemporary moderates misconstrue as “assaults on free speech” are in reality two fundamentally opposed political conceptions of personhood responding to speech situations. Attacking the first amendment is not the goal or even a necessary consequence of leftist response to speech. In fact, seeking to amend the amendment or place activist judges who would otherwise interpret the amendment favorably to activist stances would represent little more than an extensive, time-consuming red herring. If there were to be legislation (that withstands judicial scrutiny) or Court opinions favoring some degree of embodied experience, then far-right identity politics would have equal access to such laws in maneuvering politics for their own ends. That political liberalism empowers us to ignore speech situations is the best we can hope for within our given circumstances to mitigate offensive and bad speech and ultimately allow the marketplace of ideas to let the far right dwindle. The real problem is a historically inflected conception of personhood rejecting a disembodied, sovereign singularity and responding to speech situations accordingly. Our liberal system promotes institutions that equalize players in speech situations so as to not give preference to specific ideologies while simultaneously rejecting the recognition of its own ideological underpinnings that maintain the kind of politics giving rise to these speech conflicts.

Free speech is not under attack and it will continue to be protected by centuries of Court opinions that hold the First Amendment in high esteem. But the classically liberal belief in the individual who is sovereign-over-himself is no longer a neutral principle shared in common by democratic society. If anything is “under assault,” then it is this exaggerated fiction of supreme individualism.

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Hank Owings is a man with strong opinions who thinks himself interesting (meaning he's probably not very interesting at all). He graduated from the University of Chicago with an MA in Religion, Politics, and Global History; and he received his BA (Magna Cum Laude) in English (Honors), Religion (Honors), and Philosophy from Ohio Wesleyan University. He thinks a lot about race and gender and democracy and cats, even though he only has a dog. He secretly wishes he was Vegan.